79 N.Y.S. 176 | N.Y. App. Div. | 1902
Lead Opinion
In its general features this case is brought within the decision in Benjamin v. City of New York (Sup.) 78 N. Y. Supp. 1067, where the judgment was reversed. The principles of law therein enunciated are controlling of the rights of the plaintiff in the present action. In addition to this, it is disclosed by the present record, without dispute, that by rule 27 of the building department, to which the plaintiff was subject, it was required that all employés of such department should perform such other duties, not therein specially prescribed for them, as the interest of the departmental service may demand or require, in the opinion of the superintendent of buildings; and by rule 5 it was required that all notices of violation of law and others as may be necessary shall be served by the messenger or any employé of the department in a careful, exact, and proper manner, .and the proper returns of such service shall be made immediately thereafter. It was testified by the chief clerk of the department ■of buildings, and not disputed, that," in connection with these rules, he gave to the employés instructions that the affidavits required in the department to be taken were so to be taken as a part of the -duty of the respective employés. It must have been understood,
The court was therefore not authorized to direct a verdict, and the judgment based thereon should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.
Concurrence Opinion
I concur with Mr. Justice HATCH in his opinion in this case. I am also of opinion that the plaintiff, being an employé of the city, could make no charge for work done even for the city in office hours. I think that another reason why there can be no recovery in this case is that there is no evidence whatever that any person in the building department could incur any such obligation on the part of the city.